Defendant was charged with driving under the influence of intoxicants.
The trial court granted defendant's motion to suppress evidence of defendant's impairment
on the ground that the arresting officer exceeded the permissible scope of an investigation
authorized by ORS 810.410 during traffic stops. The state appealed, arguing that the
officer lawfully obtained the evidence of defendant's impairment, and, even if he did not,
the evidence remained admissible under ORS 136.432. We reversed and remanded on the
ground that, even if the officer obtained the evidence in violation of ORS 810.410, the
evidence was not subject to suppression under ORS 136.432. State v. Fugate, 154 Or
App 643, 963 P2d 686, on recons 156 Or App 609, 969 P2d 395 (1998). The Supreme
Court reversed on the ground that ORS 136.432 was enacted after the offense took place,
and retroactive application of the statute to defendant would offend the ex post facto
provision of the Oregon Constitution. State v. Fugate, 332 Or 195, 26 P3d 802 (2001).
The court remanded to us to consider the state's argument that, in any event, the evidence
was obtained lawfully. We conclude that the state is correct and reverse and remand.

The trial court found the following facts. Oregon State Police Officer Jeter
stopped defendant's car when he noticed that it had no license plate light. He ran a
records check and determined that the driving privileges of the registered owner of the
vehicle had been suspended. Jeter asked for defendant's identification and then asked the
three passengers in the vehicle for their identification as well. Upon receiving the
identification, he ran a license check on all four individuals. He discovered that
defendant's license had been suspended. He also learned that there was an outstanding
warrant for the arrest of one of the passengers, Gill. As Jeter approached Gill, he noticed
a pouch in the back seat of the car that he thought was a gun holster. He seized the
pouch, opened it, and saw inside a spoon that contained white residue.

Jeter ordered everyone out of the car, including defendant. When defendant
was out of the car, Jeter noticed for the first time that his breath smelled of alcohol and
that his eyes were red and watery. Jeter asked defendant to perform field sobriety tests
and ultimately arrested defendant for driving under the influence of intoxicants.

At trial, defendant moved to suppress the evidence of his physical
impairment on the ground that Jeter observed that evidence only because he exceeded the
permissible scope of a traffic stop when he asked the passengers for their identification.
The trial court agreed, reasoning that, because Jeter lacked reasonable suspicion that any
of the passengers had committed a crime, he lacked authority to ask them for their
identification. The court further reasoned that, because Jeter's unauthorized request for
identification had triggered the sequence of events that led to Jeter's observation that
defendant appeared intoxicated, that observation and the evidence that resulted from it
were fruits of the poisonous tree.

The state appealed, arguing that, under ORS 136.432, the evidence was
admissible even if obtained without statutory authority. As we have noted, the Supreme
Court rejected that argument. The state also argued that, among other things, even if ORS
136.432 does not apply, the trial court erred in suppressing the evidence on the ground
that Jeter lacked authority to question the passengers, because defendant cannot assert a
violation of the rights of a passenger as a basis for the suppression of evidence against
him. Defendant replies that he is not attempting to assert the violation of the rights of the
passengers; rather, he is arguing that, by asking the passengers for their identification,
Jeter unlawfully extended the duration of the stop without reasonable suspicion, which
was a violation of his constitutional rights.

The state is correct that defendant cannot complain about the violation of
the rights of the passengers. State v. Trevino/Ahumada, 133 Or App 24, 27-28, 889 P2d
1317, rev den 321 Or 340 (1995). In State v. Amaya, 176 Or App 35, 44-47, 29 P3d 1177
(2001), however, we held that neither the federal nor the state constitution requires that
questioning during a traffic stop be related to the grounds for the stop unless that
questioning would have the effect of detaining a defendant without reasonable suspicion
of illegal activity. In this case, defendant argues not that the questioning of the
passengers violated their rights, but that the questioning had the effect of detaining him--by extending the duration of the stop--without reasonable suspicion that he had engaged
in criminal activity.

The state argues that, in any event, the duration of the stop was not
unlawfully extended, because, although Jeter may not have had reasonable suspicion to
ask the passengers for their identification at the time, under State v. Dempster, 248 Or
404, 408, 434 P2d 746 (1967), the discovery of an outstanding warrant for Gill, one of
those passengers, "purged the taint of any prior illegality."

In Dempster, the Supreme Court held that the discovery of an arrest warrant
will "purge * * * the taint" of a prior unlawful detention, and, as a result, a subsequent
arrest based on the detention will not be fruit of the poisonous tree. Id. at 407-08; see
also State v. Angerbauer, 140 Or App 77, 80, 914 P2d 12 (1996) (because discovery of
arrest warrant purged the taint of prior unlawful detention, subsequent arrest was not fruit
of the poisonous tree); cf.State v. Taylor, 151 Or App 687, 692, 950 P2d 930 (1997), rev
den 327 Or 432 (1998) (Dempster does not apply when the outstanding warrant is not
discovered until after the arrest). Thus, in this case, the state is correct that, even if the
questioning of Gill was unlawful, Jeter's discovery of the outstanding warrant purged the
taint of that questioning, and Jeter's subsequent arrest of defendant is not fruit of the
poisonous tree.

Defendant concedes that, under Dempster, the discovery of the outstanding
warrant purged the taint of any unlawful questioning of Gill. He nevertheless insists that
the evidence of his intoxication must be suppressed, because the discovery of the warrant
for Gill's arrest did not purge the taint as to the unlawful questioning of the other
passengers. Defendant's argument is unavailing, however. The questioning of the other
passengers did not lead to the discovery of the evidence of defendant's intoxication. It
was the questioning of Gill that led to the discovery of the outstanding warrant for his
arrest and, in turn, led to the discovery of the pouch containing white residue that caused
Jeter to ask defendant to step out of the car, at which point Jeter observed defendant's
intoxicated condition.

Defendant argues that, even so, the evidence of the results of the field
sobriety tests should be suppressed, because Jeter lacked probable cause to request him to
submit to them. We decline to address that argument. Because the trial court concluded
that the evidence of defendant's intoxication was fruit of the poisonous tree, it did not
reach defendant's alternative argument and did not make findings concerning the facts
relevant to that argument. The court may address that argument on remand. See State v.
Terhear/Groemmel, 142 Or App 450, 459, 923 P2d 641 (1996) (remanding for additional
findings where trial court did not reach alternative arguments).